by Alan Bojorquez 26 th Annual Election Law Seminar December 5, 2014 Austin, Texas
TABLE OF CONTENTS ABOUT THE AUTHOR... 4 19.11. Introduction to Annexation.... 5 (a) Procedural Requirements... 5 (b) Definitions... 5 (c) Pre-existing Land Use... 5 (d) Application... 6 (e) Regulations... 6 19.12. Involuntary Annexation.... 6 19.13. Plan.... 6 (a) Need for Annexation Plan... 6 (b) Amendments to Plan... 6 (c) Plan Has Three Year Requirement... 6 19.14. Exceptions to Plan Requirements.... 7 (a) Annexation Without Plan... 7 (b) Separate Annexations Prohibited... 7 (c) Plan Not Applicable to Annexation Before December 31, 2002... 8 19.15. Effect of Plan on Special Districts.... 8 19.16. Removal of Area from Annexation Plan.... 8 19.18. Notice of Plan Adoption or Amendment.... 9 19.19. Posting Plan on the Internet... 9 19.20. Inventory of Services and Facilities... 9 (a) Public and Private Providers... 9 (b) Time Period Covered by Inventory... 10 (c) Facilities Inventory Requirements... 10 (d) Police, Fire, and EMS Inventory Requirements... 10 (e) Public Inspection of Inventory... 10 (f) Verification of Inventory Data... 10 19.21. Hearing Requirements for Annexation.... 10 (a) Timing... 10 (b) Location... 10 19.22. Notice of Hearing for Annexation.... 11 (a) Publication Requirements... 11 (b) Notification by Mail... 11 19.23. Negotiations by Municipalities with a Population of less than 1.6 Million for Annexation... 11 (a) Provisions for Services after Annexation... 11 (b) Selection of Representatives for Annexation Negotiations... 11 (c) Services for Special District after Annexation... 11 (d) Selection of Representatives for Special Districts... 11 19.24. Negotiation for Services in Lieu of Annexation.... 11 (a) Provisions for Services without Annexation... 12 (b) Terms of Agreement.... 12 (c) Annexation Upon Petition... 12 19.25. Arbitration Regarding Negotiations for Services.... 12 26 th Annual Election Seminar Page 2 of 28 December 5, 2014
(a) Provisions to Request Arbitration... 12 (b) Appointment of an Arbitrator... 12 (c) Requirements for the Arbitrator... 13 (d) Limitation of Authority... 13 (e) Time Limit and Decision... 13 (f) Appeal Procedures.... 13 (g) Time Span of Arbitrator s Decision... 13 (h) Payment for Arbitration... 13 19.26. Checklist of Procedures for Annexation With and Without a Plan.... 13 19.27. Voluntary Annexations.... 21 19.28. Involuntary Annexations in Certain Municipalities.... 22 (a) Involuntary Annexation by Home-Rule Municipality... 23 (b) Involuntary Annexation by Municipality with More than l,000 Population... 23 (c) Disannexation... 23 (d) Reservoirs... 23 (e) Airports... 24 (f) Navigable Streams... 24 (g) Streets... 24 19.29. Payment for Annexation of Property in a Special District.... 24 19.30. Annexation of Emergency Services District.... 25 19.31. Partnership with District Annexed by Municipality.... 25 19.32. Limited Purpose Annexations Home-Rule Municipalities.... 25 (a) Limited Purpose Annexations by Certain Home-Rule Municipalities... 25 (b) Exclusions for Limited Purpose Annexations... 25 19.33. Annexation Statutes Applicable to Certain Municipalities.... 25 Article 4. Disannexation 19.34. Failure to Provide Services.... 26 19.35. Disannexation by Petition and Election.... 27 19.36. Disannexation of Sparsely Populated Areas.... 27 19.37. Disannexation of Road or Highway... 27 19.38. Disannexation of Limited Purpose Annexation in a MUD... 27 19.39. Refund of Taxes After Disannexation.... 27 26 th Annual Election Seminar Page 3 of 28 December 5, 2014
ABOUT THE AUTHOR Alan Bojorquez, Principal Bojorquez Law Firm, P.C. (Austin, Texas) Alan represents cities across the state as City Attorney or Special Counsel. Before going into private practice, he was a staff attorney for the Texas Municipal League. Alan graduated from Texas Tech University with his Bachelor of Arts in English, Master of Public Administration, and Doctor of Jurisprudence. He is on the Board of Directors of the Texas City Attorneys Association, and is Texas Chairperson for the International Municipal Lawyers Association. Alan is the 2015 Chairperson of the University of Texas School of Law s annual Land Use Planning Conference. He authors the TEXAS MUNICIPAL LAW & PROCEDURE MANUAL (6 th Ed.). November 20, 2014 26 th Annual Election Seminar Page 4 of 28 December 5, 2014
NOTE: This paper is an excerpt from the Texas Municipal Law and Procedure Manual (6 th Ed.), by Alan Bojorquez, published by the Texas Municipal Clerks Association. The complete text is available at http://municlerks.unt.edu/ 19.11. Introduction to Annexation. (a) Procedural Requirements. A careful reading of Chapter 43 of the Texas Local Government Code before each proposed annexation will avoid embarrassing and time-consuming errors. Home-rule municipalities may have additional requirements in their charters. In some cases there will be a time limit for completion of the annexation. In other cases an annexation plan must be prepared prior to initiation of annexation. Failure to comply with any detail in the complicated requirements for annexation may result in the annexation being overturned. Because annexation of territory and changes to municipal boundaries are so vital to municipal government, it is worthwhile to consult an attorney experienced in municipal law before an annexation. Tip: Procedurally defective annexations may have been cured by a validation statute. There was a series of validating statutes beginning with V.T.C.S. art. 974d-1, art. 974d-2, etc. Tex. Gov t Code 311.031 repealed most of these statutes enacted prior to V.T.C.S. art. 974d-36 effective May 20, 1987. The repealing legislation and Tex. Gov t Code 311.031 provided repeal did not void or affect any validation. Unfortunately, West Publishing (the company that prints and maintains the state codes) removed them from the Vernon's statutes; thus, it is difficult to locate each one to determine if it applies. Each was worded differently and some were very broad validations, while others were narrow. Many validate city council actions other than annexations. (b) Definitions. (1) Public entity: a municipality, county, fire protection service provider, including a volunteer fire department, emergency medical services provider, including a volunteer emergency medical services provider, or a special district. Tex. Loc. Gov t Code 43.053(a). The term is used a number of times in this chapter in connection with statutory provisions for providing notice, and setting out requirements of information to be provided to and from such entities. (2) Special district: a municipal utility district, water control and improvement district, or other district created under Texas Constitution Article 3, 52 or Art. 16, 59. Tex. Loc. Gov t Code 43.052(a) as: Caution: This Manual omits several provisions applicable only to Houston. (c) Pre-existing Land Use. Once property is annexed, the municipality s ordinances and regulations apply to the property. However, Texas Local Government Code 43.002 provides that even a valid zoning ordinance or land use regulation may not prohibit a person in a newly annexed area from: (1) continuing to use land in the area in the manner in which the land was being used on the date the annexation proceedings were instituted if the land use was legal at that time; or (2) beginning to use land in the area in the manner that was planned for the land before the 90 th day before the effective date of the annexation if (A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and 26 th Annual Election Seminar Page 5 of 28 December 5, 2014
(B) a completed application for the initial authorization was filed with the governmental entity before the date the annexation proceedings were instituted. (d) Application. A completed application is filed if the application includes all documents and other information designated as required by the governmental entity in a written notice to the applicant. (e) Regulations. A municipality is not prohibited under Texas Local Government Code 43.002 from imposing: (1) a regulation relating to the location of sexually oriented businesses, as that term is defined by Texas Local Government Code 243.002; (2) a municipal ordinance, regulation, or other requirement affecting colonias, as that term is defined by Tex. Gov t Code 2306.581; (3) a regulation relating to preventing imminent destruction of property or injury to persons; (4) a regulation relating to public nuisances; (5) a regulation relating to flood control; (6) a regulation relating to the storage and use of hazardous substances; (7) a regulation relating to the sale and use of fireworks; or (8) a regulation relating to the discharge of firearms. 19.12. Involuntary Annexation. General-law municipalities (Types A, B, and C) cannot annex territory involuntarily, except in certain limited instances. Sitton v. City of Lindale, 455 S.W.2d 939 (Tex. 1970). They generally can annex territory only when requested by the owners and / or inhabitants, as set out in Tex. Loc. Gov t Code Chapter 43. A home-rule municipality may annex territory involuntarily, but must follow the procedures set out in its charter. All municipalities must follow the procedures set out in the Texas Local Government Code for both voluntary and involuntary annexations. Tip: A municipal ordinance defining the boundary of an annexed area is conclusively presumed to have been adopted with the consent of all appropriate persons (except other municipalities) if: (1) two years has passed; and (2) no legal challenges to the annexation have been brought during that two-year period. Tex. Loc. Gov t Code 43.901. 19.13. Plan. (a) Need for Annexation Plan. A municipality shall prepare an annexation plan that specifically identifies annexations that may occur beginning on the 3 rd anniversary of the date the annexation plan is adopted. Tex. Loc. Gov t Code 43.052(c). Tip: Even if a municipality has no intention of involuntarily annexing any territory, as a precautionary measure the municipality might consider passing an ordinance similar to the form in Appendix A Form 3. (b) Amendments to Plan. The plan may be amended from time to time, however, each amendment will apply to annexations that may occur beginning on the 3 rd anniversary of the date the plan is amended. Tex. Loc. Gov t Code 43.052(c). (c) Plan Has Three Year Requirement. Before conducting an annexation which is not described in the exceptions to the plan requirement, a municipality shall prepare an annexation plan that specifically identifies annexations that may occur beginning on the 3 rd anniversary of the date the annexation plan is 26 th Annual Election Seminar Page 6 of 28 December 5, 2014
adopted. Tex. Loc. Gov t Code 43.052(c). This means that a municipality thinking about involuntary annexations must plan at least three years in advance. 19.14. Exceptions to Plan Requirements. (a) Annexation Without Plan. An annexation plan is not required in the following circumstances under Texas Local Government Code 43.052(h): (1) the area contains fewer than 100 separate tracts of land on which 1 or more residential dwellings are located on each tract; (2) the area will be annexed by petition of more than 50 percent of the real property owners in the area proposed for annexation or by vote or petition of the qualified voters or real property owners as provided in the sections discussing voluntary annexation which include: (A) Texas Local Government Code 43.023 for general-law municipalities with a population of more than 5,000; (B) Texas Local Government Code 43.024 for Type A municipalities; (C) Texas Local Government Code 43.025 for Type B municipalities; (D) Texas Local Government Code 43.026 for Type A municipality annexing area it owns; (E) Texas Local Government Code 43.028 for any municipality annexing on petition of area landowners; and (F) Texas Local Government Code 43.029 certain small municipalities annexing on petition of school board. (3) the area is or was the subject of: (A) an industrial district contract under Texas Local Government Code 42.044; or (B) a strategic partnership agreement under Texas Local Government Code 43.0751; (4) the area is located in a colonia, as that term is defined by Tex. Gov t Code 2306.581; (5) the area is a navigable stream in the ETJ of a general-law municipality which annexes the area under Texas Local Government Code 43.027; or the area is annexed pursuant to a mutual change in boundaries between adjacent municipalities under Texas Local Government Code 43.031; (6) the area is located completely within the boundaries of a closed military installation; or (7) the municipality determines that the annexation of the area is necessary to protect the area proposed for annexation or the municipality from: (A) imminent destruction of property or injury to persons; or (B) a condition or use that constitutes a public or private nuisance as defined by background principles of nuisance and property law of this state. (b) Separate Annexations Prohibited. A municipality may not circumvent the requirements for a municipal annexation plan under Texas Local Government Code 43.052 by proposing to separately annex 2 or more areas described in Texas Local Government Code 43.052(h) (as set out above) if no reason exists under generally accepted municipal planning principles and practices for separately annexing the areas. If a municipality proposes to separately annex areas in violation of these requirements, a person residing or owning land in the area may petition the municipality to include the area in the municipality s annexation plan. If the municipality fails to take action on the petition, the petitioner may request arbitration of the dispute. The petitioner requests appointment of an arbitrator and the municipality shall pay the cost of arbitration. Tex. Loc. Gov t Code 43.052(i). 26 th Annual Election Seminar Page 7 of 28 December 5, 2014
(c) Plan Not Applicable to Annexation Before December 31, 2002. Although a municipality is required to adopt a 3-year plan, it applies in its entirety only after December 31, 2002. Until that time, annexations which are not on the exemption list of Texas Local Government Code 43.052(h), may be accomplished under the previous law with some restrictions. (See the Historical and Statutory Notes following Texas Local Government Code 43.052.) The land to be annexed must not be included in the 3- year plan. The changes to the following statutes will apply to these pre-december 31, 2002 annexations: (1) Continuation of Land Use provisions. Tex. Loc. Gov t Code 43.002; (2) Tex. Loc. Gov t Code 43.054 - Width Requirements; (3) Tex. Loc. Gov t Code 43.0545 - Using prior strip annexation to meet adjacency requirements; (4) Tex. Loc. Gov t Code 43.056(b)(c)(e)(f)(g)(l)(m)(n) and (o) - Service plan requirements; (5) Tex. Loc. Gov t Code 43.121(a) - Limited Purpose Annexation by Home-Rule Municipality. 19.15. Effect of Plan on Special Districts. At any time during which an area is included in a municipality s annexation plan, a municipal utility district or other special district that will be abolished as a result of the annexation, excluding an emergency services district, in which the area is located may not without the consent of the municipality: (1) reduce the tax rate applicable to the area if the amount that remains in the debt service fund after reduction and after subtracting the amount due for debt service in the following year is less than 25 percent of the debt service requirements for the following year; (2) voluntarily transfer an asset without consideration; or (3) enter into a contract for services that extends beyond the 3-year annexation plan, other than a contract with another political subdivision for the operation of water, waste water, and drainage facilities. If a plan includes a special district that will be abolished, the municipality should begin monitoring the agendas and actions of the district s governmental body. The fact that the law forbids the special district from taking certain actions does not mean that it will not take the action either deliberately or accidentally. If the municipality is aware of the proposal to take the action or the fact that the action was recently taken, a court can be asked quickly to set aside the action or prevent it. 19.16. Removal of Area from Annexation Plan. A municipality may amend its annexation plan to remove an area proposed for annexation. Tex. Loc. Gov t Code 43.052(e). If the plan is amended to remove an area during the first 18 months after an area is included in a 3-year annexation plan, then the municipality may not amend the plan to again include the area for 1 year after the date of the amendment. But if the amendment to remove the area occurs during or after the 18 months following the month an area is included in the 3-year annexation plan, then the municipality must wait 2 years before again amending the plan to include the area. Tex. Loc. Gov t Code 43.052(e). 19.17. Deadlines for Completion of Annexation Plan. Once a 3-year annexation plan has been adopted, annexation of all areas under the plan, which have not been removed from the plan as set above, must be completed before the 31 st day after the 3 rd anniversary of the date the area was included in the annexation plan. (The area could be included in the original plan or by amendment.) If the annexation is not completed within that time, the municipality may not annex the area before the 5 th anniversary of the last day for completing an annexation. Tex. Loc. Gov t Code 43.052(g). 26 th Annual Election Seminar Page 8 of 28 December 5, 2014
19.18. Notice of Plan Adoption or Amendment. If a municipality adopts or amends an annexation plan it must give written notice within 90 days of the date of adoption or amendment to: (1) each property owner in the affected area. Property owners are determined by appraisal records furnished by the appraisal district for each county in which the affected area is located; (2) each public entity defined in Texas Local Government Code 43.053 as including a municipality, county, fire protection service provider, including the volunteer fire department, emergency medical services provider, including a volunteer emergency medical services provider, or a special district. ( Special district is defined under Texas Local Government Code 43.052(a) as a municipal utility district, water control and improvement district, or other district created under Tex. Const. Art. 3, 52 or Art. 16, 59); and (3) each railroad company that serves the municipality and is on the municipality s tax roll if the company s right-of-way is in the area proposed for annexation. 19.19. Posting Plan on the Internet. If a municipality has an internet website, the municipality is required by Texas Local Government Code 43.052(j) to: (1) post and maintain the posting of its annexation plan on its internet website; (2) post and maintain the posting on its website of any amendments to include an area in its annexation plan until the date the area is annexed; and (3) post and maintain the posting on its internet website of any amendments to remove an area from its annexation plan until the date the municipality may again include the area in its annexation plan. Caution: Printing a dated copy of the plan, and each amendment, as they are posted on the web site will help prove that this requirement was met. Regularly printing dated copies of the plan and the amendments will allow you to prove that the plan was continuously and properly posted as required. Take steps to prevent an opponent of an annexation from hacking into your web site, and changing or obliterating the plan so as to use this provision to attack the annexation. 19.20. Inventory of Services and Facilities. (a) Public and Private Providers. After adopting an annexation plan or amending an annexation plan to include additional area a municipality shall compile a comprehensive inventory of services and facilities provided by public and private entities directly or by contract in each area proposed for annexation. Tex. Loc. Gov t Code 43.053(b). The inventory of services and facilities must include all services and facilities the municipality is required to provide or maintain upon annexation. Tex. Loc. Gov t Code 43.053(b). In the notice to public entities sent out within 90 days after a plan is adopted, the municipality shall request from each public or private entity that provides services or facilities in each area proposed for annexation the information necessary to compile the inventory. Tex. Loc. Gov t Code 43.053(c). Each public or private entity shall provide to the municipality the information held by the entity that is necessary to compile the inventory not later than the 90 th day after the date the municipality requests the information unless the entity and the municipality agree to extend the period for providing the information. Tex. Loc. Gov t Code 43.053(c). The information provided by the public or private entity must include: (1) the type of service provided; (2) the method of service delivery; and 26 th Annual Election Seminar Page 9 of 28 December 5, 2014
(3) all information prescribed by the subsections dealing with utility facilities, roads, other infrastructure and with police, fire, and emergency medical services as set out below. Tex. Loc. Gov t Code 43.053(c). (b) Time Period Covered by Inventory. The information required in the inventory shall be based on the services and facilities provided during the year preceding the date the municipality adopted or amended the annexation plan. Tex. Loc. Gov t Code 43.053(d). (c) Facilities Inventory Requirements. Utility facilities, roads, drainage structures, and other infrastructure provided or maintained by public or private entities, the inventory must include: (1) an engineer s report that describes the physical condition of all infrastructure elements in the area; and (2) a summary of capital, operational, and maintenance expenditures for that infrastructure. Tex. Loc. Gov t Code 43.053(e). (d) Police, Fire, and EMS Inventory Requirements. Police, fire, and emergency medical services provided by public or private entities, the inventory must include for each service: (1) the average dispatch and delivery time; (2) a schedule of equipment, including vehicles; (3) a staffing schedule that discloses the certification and training levels of personnel; and (4) a summary of operating and capital expenditures. Tex. Loc. Gov t Code 43.053(f). (e) Public Inspection of Inventory. The municipality must complete the inventory and make the inventory available for public inspection on or before the 60 th day after the date the municipality receives the required information from the service providers set out above. Tex. Loc. Gov t Code 43.053(g). (f) Verification of Inventory Data. The municipality may monitor the services provided in an area proposed for annexation and verify the inventory information provided by the service provider. Tex. Loc. Gov t Code 43.053(h). Tip: In regards to annexations that do not require a 3-year annexation plan, the annexations statutes fail to provide instructions for notices and hearings. It is wise for municipalities conducting annexations without 3-year plans to follow the same notice and hearing requirements. 19.21. Hearing Requirements for Annexation. (a) Timing. Before instituting annexation proceedings and not later than the 90 th day after the date the inventory is available for inspection, the city council must conduct 2 public hearings at which persons interested in the annexation are given the opportunity to be heard. Tex. Loc. Gov t Code 43.0561(a). (b) Location. At least 1 of the hearings must be held in the area proposed for annexation if: (1) a suitable site is reasonably available, and (2) more than 20 adults who are permanent residents of the area file a written protest of the annexation with the municipal clerk within 10 days after the date of the publication of the notice of the hearing. Tex. Loc. Gov t Code 43.0561(b). Such a protest must state the name, address, and age of each protester who signs. Tex. Loc. Gov t Code 43.0561(b). 26 th Annual Election Seminar Page 10 of 28 December 5, 2014
If a suitable site is not reasonably available in the area proposed for annexation, the hearing may be held outside the area proposed for annexation if the hearing is held in the nearest suitable public facility. Tex. Loc. Gov t Code 43.0561(b). 19.22. Notice of Hearing for Annexation. (a) Publication Requirements. Notice of the hearings must be published in a newspaper of general circulation in the municipality and in the area proposed for annexation. Tex. Loc. Gov t Code 43.0561(c). Publish the notice at least once on or after the 20 th day but before the 10 th day before the date of the hearing. If the municipality has an internet website then notice of the hearing must also be posted on or after the 20 th day but before the 10 th day before the date of the hearing. It must remain posted on the website until the day of the hearing. Tex. Loc. Gov t Code 43.0561(c) (b) Notification by Mail. A municipality must give additional notice by certified mail to: (1) each public entity as defined above by Texas Local Government Code 43.053, and utility service provider that provides services in the area proposed for annexation; and (2) each railroad company that serves the municipality and is on the municipality s tax roll if the company s right-of-way is in the area proposed for annexation. Tex. Loc. Gov t Code 43.0561(c). 19.23. Negotiations by Municipalities with a Population of less than 1.6 Million for Annexation (a) Provisions for Services after Annexation. After holding the 2 hearings required by Texas Local Government Code 43.0561, as described above, a municipality with a population of less than 1.6 million (all municipalities except Houston), and the property owners of the area proposed for annexation shall negotiate for the provision of services to the area after annexation or for the provision of services to the area in lieu of annexation under Texas Local Government Code 43.0563 which is discussed below. Tex. Loc. Gov t Code 43.0562(a)(1). (b) Selection of Representatives for Annexation Negotiations. For purposes of these negotiations the commissioners court of the county in which the area proposed for annexation is located shall select five representatives to negotiate with the municipality for the provision of services to the area after annexation. If the area proposed for annexation is located in more than one county, the commissioners court of the county in which the greatest number of residents reside shall select three representatives to negotiate with the municipality and the commissioners courts of the remaining counties jointly shall select two representative to negotiate with the municipality. Tex. Loc. Gov t Code 43.0562(b). (c) Services for Special District after Annexation. If a municipality proposes to annex a special district as that term is defined by Texas Local Government Code 43.052, the municipality and the governing board of the district shall negotiate for provision of services to the area after annexation or for the provision of services to the area in lieu of annexation under Texas Local Government Code 43.0751. [Tex. Loc. Gov t Code 43.0562(a)(2)] (d) Selection of Representatives for Special Districts. For purposes of negotiating with a special district, if more than one special district is located in the area proposed for annexation, the governing boards of the districts may jointly select five representatives to negotiate with a municipality on behalf of all the affected districts. Tex. Loc. Gov t Code 43.0562(c). 19.24. Negotiation for Services in Lieu of Annexation. 26 th Annual Election Seminar Page 11 of 28 December 5, 2014
(a) Provisions for Services without Annexation. The city council of a municipality with a population of less than 1.6 million may negotiate and enter into a written contract with representatives designated by the county commissioners, described above, for the provision of services and the funding of the services in the area. The agreement may also include an agreement related to permissible land uses and compliance with municipal ordinances. Tex. Loc. Gov t Code 43.0563(a). An agreement with this section is in lieu of annexation by the municipality of the area. Tex. Loc. Gov t Code 43.0563(b). (b) Terms of Agreement. In negotiating an agreement under this section, the parties may agree to: (1) any term allowed in a contract for the creation of an industrial district in the extraterritorial jurisdiction of a municipality under Texas Local Government Code 42.044 or under a contract with a special district under Texas Local Government Code 43.0751 regardless of whether the municipality or the area proposed for annexation would have been able to agree to the term under Texas Local Government Code 42.044 or 43.0751. Tex. Loc. Gov t Code 43.0563(c)(1); (2) any other term to which both parties agree to satisfactorily resolve any dispute between the parties, including the creation of any type of special district otherwise allowed by state law. Tex. Loc. Gov t Code 43.0563(c)(2). (c) Annexation Upon Petition. The fact that an area is or was once in a municipality s annexation plan does not prohibit the municipality from annexing the area upon request. A municipality may annex an area (for full or limited purposes), pursuant to a contract for services, at any time upon petition of the owner of the area if the area is in the municipality s annexation plan, or was removed from the annexation plan. Tex. Loc. Gov t Code 43.052(k). 19.25. Arbitration Regarding Negotiations for Services. (a) Provisions to Request Arbitration. If the municipality and the representatives of the area proposed for annexation cannot reach an agreement for the provision of services or an agreement for the provision of services in lieu of annexation either party, by majority decision of the party s representatives, may request the appointment of an arbitrator to resolve the service plan issues in dispute. The request must be made in writing to the other party before the 60 th day after the date the service plan is completed. Tex. Loc. Gov t Code 43.0564(a). The municipality may not annex the area under another section of this chapter during the arbitration proceeding or an appeal from the arbitrator s decision. Tex. Loc. Gov t Code 43.0564. (b) Appointment of an Arbitrator. The parties may agree on the appointment of an arbitrator. If the parties cannot agree on the appointment of an arbitrator before the 11 th business day after the date arbitration is requested, the mayor of the municipality shall immediately request a list of 7 neutral arbitrators from the American Arbitration Association or the Federal Mediation and Conciliation Service or their successors in function. Tex. Loc. Gov t Code 43.0564(b). An arbitrator included in the list must be a resident of Texas and may not be a resident of a county in which any part of the municipality or any part of the district proposed for annexation is located. If the parties cannot agree on the appointment of an arbitrator before the 11 th business day after the date the list is provided to the parties, each party or the party s designee may alternately strike a name from the list. The remaining person on the list shall be appointed as the arbitrator. Tex. Loc. Gov t Code 43.0564(b). 26 th Annual Election Seminar Page 12 of 28 December 5, 2014
(c) Requirements for the Arbitrator. The arbitrator must: (1) set a hearing to be held not later than the 10 th day after the date the arbitrator is appointed; and (2) notify the parties to the arbitration in writing of the time and place of the hearing not later than the 8 th day before the date of the hearing. Tex. Loc. Gov t Code 43.0564(c). (d) Limitation of Authority. The arbitrator may receive any documentary evidence or other information the arbitrator considers relevant, administer oaths, issue subpoenas, and require the attendance of witnesses in the production of documents. Tex. Loc. Gov t Code 43.0564(e). The authority of the arbitrator is limited to issuing a decision relating only to the service plan issues in dispute. Tex. Loc. Gov t Code 43.0564(d). (e) Time Limit and Decision. Unless the parties to the dispute agree otherwise, the arbitrator shall complete the hearing within 2 consecutive days. The arbitrator shall permit each party 1 day to present evidence and other information. Tex. Loc. Gov t Code 43.0564(f). If good cause is shown, the arbitrator may schedule an additional hearing to be held not later than the 7 th day after the date of the 1 st hearing. Unless otherwise agreed to by the parties, the arbitrator must issue a decision in writing and deliver a copy of the decision to the parties not later than the 14 th day after the date of the final hearing. Tex. Loc. Gov t Code 43.0564(f). (f) Appeal Procedures. Either party may appeal any provision of an arbitrator s decision that exceeds the authority granted above to a district court in a county in which the area proposed for annexation is located. Tex. Loc. Gov t Code 43.0564(g). (g) Time Span of Arbitrator s Decision. If the municipality does not agree with the terms of the arbitrator s decision, the municipality may not annex the area proposed for annexation before the 5 th anniversary of the date of the arbitrator s decision. Tex. Loc. Gov t Code 43.0564(h). (h) Payment for Arbitration. Unless the arbitrator finds that the request for arbitration submitted by the representatives of the area proposed for annexation was groundless or requested in bad faith or for the purposes of harassment, the municipality shall pay the cost of arbitration. If the arbitrator does make such a finding then the arbitrator may require the area proposed for annexation to pay all or part of the costs of arbitration. Tex. Loc. Gov t Code 43.0564(i). 19.26. Checklist of Procedures for Annexation With and Without a Plan. The following is a checklist that should be consulted before annexation. Some of the items may not be necessary. For example, several of the items apply to an annexation for which an annexation plan is required. If you are conducting an annexation for which an annexation plan is not required those items may be omitted. The 1 st step in considering any annexation should be to prepare a schedule of action using this chapter and Texas Local Government Code Chapter 43 as guides. (1) Obtain legal description. Decide what property the city council may be interested in annexing. Obtain an accurate legal description (metes and bounds) of all the areas to be included. Be sure the description closes i.e., describes a complete boundary with no gaps. Be sure you can identify the starting and ending points of the description on a map and the ground. (A) Be sure that the area to be annexed is within the municipality's ETJ, or is already owned by the municipality. Tex. Loc. Gov t Code 43.051. 26 th Annual Election Seminar Page 13 of 28 December 5, 2014
(B) Be sure that the area to be annexed is not within the ETJ of another municipality, unless written consent in the form of an ordinance or resolution has been received from the city council of the other municipality. Tex. Loc. Gov t Code 42.022(c) & 42.023. (C) If the municipality has a population of less than 1.6 million, be sure that the area to be annexed is at least 1,000 feet wide at its narrowest point. This requirement applies whether or not the area is publicly or privately owned or whether or not it is a strip following the course of a road, highway, river, stream, or creek. The only exceptions are: 1) the boundaries of the municipality are already contiguous to the area on at least 2 sides. Tex. Loc. Gov t Code 43.054(b)(1); 2) the annexation is initiated by the written petition of the owners or a majority of the qualified voters in the area. Tex. Loc. Gov t Code 43.054(b)(2); or 3) the area abuts or is contiguous to another jurisdictional boundary. Tex. Loc. Gov t Code 43.054(b)(3). The 3 rd exception means that if there is a strip of land less than 1,000 feet wide between the boundary of one municipality (first municipality), and ETJ of another municipality, then the 1 st municipality may annex that property. (D) Avoid strip annexations. Check the annexation ordinance for the area of the municipality which is already within the municipal limits, which you are planning to use to meet the contiguous requirement for annexing the new property. Texas Local Government Code 43.0545 sets out the following: (a) A municipality may not annex an area that is located in its ETJ only because the area is contiguous to municipal territory that is less than 1,000 feet in width at its narrowest point; or (b) A municipality may not annex an area that is located in its ETJ only because the area is contiguous to municipal territory that: (1) was annexed before September 1, 1999; and (2) was in its ETJ at the time of annexation only because the territory was contiguous to municipal territory that was less than 1,000 feet in width at its narrowest point. (c) Subsections (a) and (b) above do not apply to an area: (1) completely surrounded by incorporated territory of 1 or more municipalities; (2) for which the owners of the area have requested annexation by the municipality; (3) that is owned by the municipality; or (4) that is the subject of an industrial district contract under Texas Local Government Code 42.044. (d) Additionally, Subsection (b) does not apply if the minimum width of the narrow territory described by Subsection (b)(2), following subsequent annexation, is no longer less than 1,000 feet in width at its narrowest point. (e) For purposes of this section, roads, highways, rivers, lakes, or other bodies of water are not included in computing the 1,000-foot distance unless the area being annexed includes land in addition to a road, highway, river, lake, or other body of water. (E) Be sure that the area to be annexed, plus the area of all property annexed since January 1 of the present calendar year (including areas annexed for limited purposes), is no more than 10 percent of the incorporated area of the municipality as of January 1 of the present year. Tex. Loc. Gov t Code 43.055. An area is not included in the 10 percent limit under Texas Local Government Code 43.055 if it is annexed at the request of a majority of the qualified voters of the area, or at the request of the owners of the area, or 26 th Annual Election Seminar Page 14 of 28 December 5, 2014
is owned by the municipality, a county, the state, or the federal government, and is used for a public purpose. Tex. Loc. Gov t Code 43.055(a). Tip. If the municipality has not annexed its entire 10 percent allocation in a preceding year, the municipality may carry over the unused allocation for use in subsequent years. Tex. Loc. Gov t Code 43.055(b). However, regardless of any carryover allocation, the municipality may not annex in any calendar year a total greater than 30 percent of the incorporated area of the municipality as of January 1 of that year. Tex. Loc. Gov t Code 43.055(c). (G) If the proposed annexation would cause an area to be entirely surrounded by the municipality, but would not include the area within the municipality, the city council must find that surrounding the area is in the public interest. Tex. Loc. Gov t Code 43.057. (H) If the area to be annexed is part of a water or sewer district, or a utility district, check Texas Local Government Code 43.071 and 43.072, and comply with the requirements set out in those sections. Be careful about this requirement because there are financial penalties involved if an annexation of a special district is invalidated by a court. In this section water or sewer district means a district created under Tex. Const. Art. 3, 52(b)(1) or (b)(2) or under Article 16, 59 that provides as its principal function water and/or sewer service to households. The term does not include a district the primary function of which is the wholesale distribution of water. Tex. Loc. Gov t Code 43.071(a). (I) If the area is served by other public utilities, see the section on "Certificates of Convenience and Necessity" in this Manual to determine the effect of the annexation. (2) Evaluate Voting Rights Act Requirements. Evaluate the racial makeup of the population in the area to be annexed in order to comply with the U.S. Voting Rights Act. Annexations must not be performed selectively in a manner that unreasonably excludes minority voters. It is conceivable that if an annexation would have the effect of diluting minority voting strength the annexation may not be approved by the U.S. Department of Justice. Even if preclearance has not been obtained the municipality may not prevent a resident of the new area from voting. Tex. Loc. Gov t Code 43.906(b). Caution: Although municipalities are no longer required to submit proposed changes in municipal boundaries to the U.S. Department of Justice for preclearance under the federal Voting Rights Act, it remains unlawful to discriminate against minority voters. (3) Determine if an annexation plan is required. (Annexation prior to December 31, 2002, will not be under a 3-year plan. But note that property included in the 3-year plan cannot be annexed earlier. Acts 1999, 76 th Legislature, Chapter 1167 17.) Texas Local Government Code 43.052(h) provides that an annexation plan will not be required if: (1) the area contains fewer than 100 separate tracts of land on which 1 or more residential dwellings are located on each tract; (2) the area will be annexed by petition of more than 50 percent of the real property owners in the area proposed for annexation or by vote or petition of the qualified voters or real property owners under one of the provisions for voluntary annexation by voting or petition. (See Tex. Loc. Gov t Code Chapter 43, Subchapter B.) (3) the area is or was the subject of: or 43.0751; (A) an industrial district contract under Texas Local Government Code 42.044; (B) a strategic partnership agreement under Texas Local Government Code 26 th Annual Election Seminar Page 15 of 28 December 5, 2014
(4) the area is located in a colonia, as that term is defined by Texas Government Code 2306.581; (5) the area is annexed under: Texas Local Government Code 43.026 Type A municipality annexing area it owns; Texas Local Government Code 43.027 General-law municipality annexing navigable stream; Texas Local Government Code 43.029 Small municipality annexing unoccupied area on petition of school board; or Texas Local Government Code 43.031 Change of boundaries by agreement of adjacent municipalities; (6) the area is located completely within the boundaries of a closed military installation; or (7) the municipality determines that the annexation of the area is necessary to protect the area proposed for annexation or the municipality from: (A) imminent destruction of property or injury to persons; or (B) a condition or use that constitutes a public or private nuisance as defined by background principles of nuisance and property law of this state. If the annexation is one for which an annexation plan is required, those requirements will apply in addition to the requirements set out on this checklist. (4) Prepare service plan. If the annexation is one for which an annexation plan is required by Texas Local Government Code 43.052, a service plan must be prepared before the first day of the 10 th month after the month in which Texas Local Government Code 43.053 requires the inventory to be prepared. Tex. Loc. Gov t Code 43.056(a). Typically, the service plan is prepared by the city engineer. If the annexation is one for which an annexation plan was not required, the city council proposing the annexation shall direct its planning department or other appropriate municipal department to prepare a service plan before the publication of the notice of the first annexation hearing required under Texas Local Government Code 43.065. In either case, the service plan must provide for extension of full municipal services to the area to be annexed. The municipality shall provide the services by any of the methods by which it extends the services to any other area of the municipality. Tex. Loc. Gov t Code 43.056(a) (for service plans under an annexation plan) and Tex. Loc. Gov t Code 43.065(a) (for service plans not under an annexation plan). Full municipal services means services provided by the annexing municipality within its full-purpose boundaries, including water and waste water services and excluding gas or electrical service. Tex. Loc. Gov t Code 43.056(c). If the annexation is a voluntary annexation, performed at the request of the landowners, be sure each landowner approves the service plan in writing before the ordinance is filed. A copy of the service plan with an approval block signed by each owner to the ordinance, can be included with a copy of the petition for annexation. This may prevent later attempts to disannex because of lack of services. (A) The service plan must schedule the provision of full municipal services in the annexed area no later than 2½ years after the effective date of the annexation unless certain services cannot reasonably be provided within that period and the municipality proposes a schedule providing those services. If the municipality proposes a schedule to extend the period for providing certain services, the 26 th Annual Election Seminar Page 16 of 28 December 5, 2014
schedule must provide for the provision of full municipal services no later than 4½ years after the effective date of the annexation. Tex. Loc. Gov t Code 43.056(b). (B) Regardless of whether the annexation is one for which an annexation plan was required or not, if the municipality provides any of the following services within the corporate boundaries of the municipality before annexation, Texas Local Government Code 43.056 requires that the service plan must include a program under which the municipality will provide those services in the area proposed for annexation on the effective day of the annexation of the area: 1) police protection; 2) fire protection; 3) emergency medical services 4) solid waste collection, except that before the 2 nd anniversary of the date an area is included within the corporate boundaries of a municipality by annexation, the municipality may not prohibit the collection of solid waste in the area by a privately owned solid waste management service provider, or impose a fee for solid waste management services on a person who continues to use the services of a privately owned solid waste management service provider. Tex. Loc. Gov t Code 43.056(n). A municipality is not required to provide solid waste collection services to a person who continues to use the services of such a privately owned solid waste management service provider during that 2-year period. Tex. Loc. Gov t Code 43.056(o). 5) operation and maintenance of water and waste water facilities in the annexed area that are not within the service area of another water or waste water utility; 6) operation and maintenance of roads and streets, including road and street lighting; 7) operation and maintenance of parks, playgrounds, and swimming pools; and 8) operation and maintenance of any other publicly owned facility, building, or service. (C) The service plan must also include a program under which the municipality will initiate after the effective date of the annexation the acquisition or construction of capital improvements necessary for providing municipal services adequate to serve the area. Tex. Loc. Gov t Code 43.056(e). The construction shall be substantially completed within the period provided in the service plan, which should be no later than 2½ years after the effective date of the annexation unless the extended schedule is proposed as discussed above. This service plan may amended to extend the period for construction if the construction is proceeding with all deliberate speed. Tex. Loc. Gov t Code 43.056(e). The construction of the facilities shall be accomplished in a continuous process and shall be completed as soon as reasonably possible consistent with generally accepted local engineering and architectural standards and practices. The municipality does not violate this requirement if the construction process is interrupted for any reason by circumstances beyond the direct control of the municipality. The acquisition or construction of facilities shall be accomplished by purchase, lease, or other contract or by the municipality s succeeding to the powers, duties, assets, and obligations of a conservation and reclamation district as authorized or required by law. Tex. Loc. Gov t Code 43.056(e). (D) The deadlines for substantially completing construction of capital improvements do not apply to a development project or proposed development project within an annexed area if the annexation of the area was initiated by petition or request of the owners of land in the annexed area and the municipality and the landowners have subsequently agreed in writing that the development project within that area, because of its size or projected manner of development by the developer, is not reasonably expected to be completed within that period. Tex. Loc. Gov t Code 43.056(e) (E) If the annexed area had a lower level of services, infrastructure, and infrastructure maintenance than that provided within the corporate boundaries of the municipality before annexation, a service plan must provide the annexed area with a level of services, infrastructure, and infrastructure maintenance that is comparable to that available in other parts of the municipality with topography, land 26 th Annual Election Seminar Page 17 of 28 December 5, 2014